Cause for complaint

Komori v Tayside Health Board - [2010] CSOH 30 (Lord
Uist)

The facts

The pursuer, a 19 year old girl, was admitted to hospital in
February 2006 with a severe gastric illness. Arterial blood samples
were needed for analysis of her blood gases. It was an
"uncomfortable" procedure but the first sample was taken
successfully. A junior house officer, Dr Vasela, later tried to
take a further sample. She made three attempts to draw a sample
from the left wrist, followed by four or five forceful attempts to
take a sample from the right wrist, using the needle in a stabbing
motion. She was becoming increasingly flustered and was shaking her
head. A nurse instructed Dr Vasela to cease her attempts. A more
senior doctor took a sample successfully on the first attempt. Dr
Vasela's attempts had caused the pursuer distress and resulted in
an injury to her right wrist.

The pursuer wrote a letter of complaint to the NHS. She later
raised an action of damages against the health board. She then
sought an order allowing her to recover the defenders' documents
relating to investigation of her complaint. The defenders claimed
the documents were privileged.

The law

Since Anderson v St Andrew's Ambulance Association in
1942 there has been a "general rule that no party can recover from
another material which that other party has made in preparing his
own case". An exception to that general rule was established in
Young v National Coal Board in 1957, for "reports by
employees present at the time of the accident and made to their
employers at or about that time". The rationale is that 'if such a
report is made as part of routine duty, and as a record of the
reporter's immediate reaction before he has had the time,
opportunity or temptation to engage in too much reflection, it may
well contain an unvarnished account of what happened and
consequently be of value in the subsequent proceedings as a
touchstone of truth.'

The judge in this case noted that the exception to the rule
"always appears to have been expressed in the context of an
industrial or road traffic accident". There was no suggestion that
the documents sought in this case were covered by the exception.
Instead he had regard, first, to the purpose for which they were
prepared and, secondly, to whether the parties were contemplating
litigation at the time of their preparation. The NHS Complaints
procedure specifically provides that a patient cannot complain
about something which they are taking legal action about. The
documents sought were created to put the pursuer in possession of
the facts about her treatment. The parties were not at "arms'
length" at the time they were created and accordingly the pursuer
was allowed to recover them.

Comment

This case turned on its own facts, with the judge deciding that
the documents were not prepared in contemplation of litigation.
"They were created at the instigation of, and for the benefit of,
the pursuer herself. There is no reason to think that, if she had
not complained, an investigation would have been carried out by the
hospital. The investigation was not carried out by the hospital for
its own purposes, but in order to respond to the pursuer's
complaint."

It seems odd that the judge had regard to whether the pursuer
was contemplating litigation at the time of her complaint, rather
than whether it was in the defenders' contemplation. However, there
is no reason to believe that this decision will have any wider
application than the circumstances of this case. The pursuer's
solicitors submitted that the court should consider the "common law
duty on doctors to inform patients what went wrong" and that "a
distinction fell to be drawn between an accident at work and
something which happened to someone in hospital". If anything this
case reinforces the well-established rule that a party is not
entitled to recover investigation documents, with only the limited
exception of statements made at or near the time by employees who
were present, so that a party may pursue their own investigation
into an accident free from the risk of having to reveal their
information to the other side.